Posts Tagged ‘elder abuse’

Nursing Home Arbitration Provision Voided in Arizona Case

FEBRUARY 1, 2016 VOLUME 23 NUMBER 5

A recent series in the New York Times chronicled the increasingly common practice of including arbitration agreements in all sorts of consumer contracts. The series noted that such provisions are often buried in the fine print of everything from job applications to car rentals to nursing home admission agreements.

Why is this important? Because limiting consumers to arbitration proceedings to resolve disputes means they are likely to recover less, they will have a harder time hiring a lawyer, and they will be unable to sue at all for the kind of small-claim injuries that frequently arise. The very prevalence of arbitration agreements shows just how valuable they are to employers, car rental agencies, nursing homes and other businesses.

One arbitration issue that comes up frequently for the elderly (and their family members and loved ones) is in the care received in nursing homes or other long-term care facilities. Very nearly every nursing home admission agreement we have seen in recent years has included a provision mandating that all disputes must be submitted to arbitration — though the provision is usually buried deep in the admission agreement’s fine print.

Nursing home patients have one advantage not available to most other consumers, however — the nursing home admission agreement usually permits the applicant to decline the arbitration provision. Sometimes that is mandated by state law, and the federal government has indicated an interest in prohibiting mandatory arbitration provisions nationwide. For the moment, though, nursing home patients can usually simply cross out the provision on admission, and breathe more easily because the nursing home can be held to task for any failures in care or management.

When the mandatory arbitration provision is signed, though, the patient and family may not be able to file lawsuits for any later breach by the nursing home. That is not always the case, however, as shown in a new Arizona Court of Appeals decision issued last week.

Arthur Edwards (not his real name) admitted his mother Marta to the Hacienda Nursing and Rehabilitation Center in Sierra Vista, Arizona, in 2010. He later explained that her admission came after he found that he was unable to care for her in his home, and Adult Protective Services let him know that if he did not place her they would initiate proceedings.

By the time Marta arrived at Hacienda, her dementia was already advanced — she could not sign the admission agreement herself. Though Arthur did not have a power of attorney signed by his mother, and was just one of her several children, he signed the admission agreements for her. He also signed a provision agreeing to submit any dispute to arbitration.

Marta died at Hacienda a year later. Arthur believed that her death was hastened by the care she received at Hacienda, and a year after her death he filed a lawsuit on behalf of her estate. Hacienda responded by asking the judge to dismiss the lawsuit and tell Arthur he had to submit the case to arbitration instead.

The trial judge agreed, and dismissed the lawsuit. Arthur appealed, arguing that he didn’t actually have any legal authority to consent to arbitration on his mother’s behalf. Hacienda argued that he was acting on her behalf, that in fact he had authority to act even if he didn’t have a signed power of attorney, and that he had acted on her behalf in other matters, as well.

The Arizona Court of Appeals reversed the dismissal of the lawsuit, and sent it back to the lower court for a trial on the merits. The appellate judges distinguished the facts in Marta’s case from an earlier Arizona case, in which a wife signed her husband into the nursing home (and agreed to a mandatory arbitration provision). Arthur’s legal relationship to his mother was not as clear as the one between spouses, ruled the court. There was insufficient evidence that any of Arthur’s custom of taking care of his mother’s finances and care arrangements amounted to authority to waive her right to have her claims tried in a court. Escareno v. Kindred Nursing, January 29, 2016.

What does Marta’s case mean for consumers in Arizona? First, and most importantly: do not sign a nursing home admission agreement without looking for and crossing out the arbitration provision. Be on the lookout for arbitration provisions on readmission after hospitalization, or in moves between facilities.

Paradoxically, Arthur prevailed partly because he had not done what he should have. He really needed to get some legal authority over his mother’s affairs — whether by a power of attorney or by court proceedings seeking appointment as her guardian and/or conservator. Instead, he basically filled out his mother’s checks and had her sign them until she was unable to, then managed to get her to consent to putting his name on her bank account. If he had gotten a durable power of attorney signed, he would probably have lost his argument that he had no authority to sign the arbitration provision on her behalf.

Is there any other way to avoid mandatory arbitration provisions? Perhaps. The Court of Appeals in Marta’s case was asked to rule that arbitration provisions amount to a “contract of adhesion” — a legal term meaning that consumers are not presented with any real choices and therefore should not be bound by the agreements. The appellate judges took pains to note that that argument might still be available, but that it was unnecessary to reach it in Marta’s case because of the way in which the agreement was signed.

Please note: we are explaining some of the practice and significance of the mandatory arbitration provisions commonly found in admission documents for nursing homes, care homes and other facilities. We have not touched on another pervasive and objectionable practice: asking family members to sign guaranteeing payment of future care costs. There are other problematic provisions in such contracts, and we urge you to seek legal counsel before signing any admission agreement.

Financial Exploitation Case Leads to Judgment, Disinheritance

MARCH 2, 2015 VOLUME 22 NUMBER 9

We hear variations on this same story once every week or so. Dad (it might be Mom, or Aunt Bridget, or a long-time family friend) seemed to be adrift after his wife (her husband, her long-time companion) died. Then he met this woman who moved in with him (or moved her to his town), cut off family contact, got a power of attorney signed and proceeded to transfer assets.

Too often there’s not much we can do about the story. The money may be all gone (the people who take advantage of seniors in this fashion are often drug users, gamblers or marginal characters themselves). The family member might actually want to live with the person everyone sees as an exploiter. Sometimes it’s hard to even locate the victim.

Once in every few cases, though, it may be possible to protect the elderly victim, improve their situation and even secure a judgment against the exploiter. That’s what happened in a case that finally (after a decade of litigation) seems to have gotten resolved by the Arizona Court of Appeals.

Bridget Greene (not her real name) was 99 when she first came to the attention of Tucson lawyer (and professional fiduciary) Denice Shepherd (her real name) in 2005. Based on a report from Adult Protective Services, Denice filed a guardianship and conservatorship proceeding to extract Bridget from her “deplorable” living situation, and to begin the process of recovering some or all of her assets.

As the story developed, it became apparent that Bridget had befriended one Andrew Brice almost two decades earlier, after her husband’s death. She and her husband had no children; her closest relatives were nieces and nephews. Just two years before the guardianship/conservatorship proceeding, Bridget had moved back to Arizona after a short stint living near her nieces in Virginia. She had then signed a power of attorney naming Andrew as her agent, and transferred her home into Andrew’s name. She had also signed a new, handwritten will leaving everything to Andrew.

Denice promptly initiated an action against Andrew, seeking return of the money he had moved from Bridget’s account to his own. She recovered over $60,000 from three bank accounts, and then initiated a complaint against Andrew claiming that he had exploited a vulnerable adult.

Under Arizona law at the time (it has since been softened), a person found to have exploited a vulnerable adult would automatically be liable for three times the amount taken, plus being disinherited from receiving anything from the victim’s estate. Denice secured a judgment against Andrew for $247,531.23 (three times the amount he had taken); the handwritten will and power of attorney were also invalidated. The judgment was reduced by $65,155.99 that Denice had collected from Andrew by that time.

Bridget lived another five years after being removed from her filthy home and the “care” she had been receiving. After she died in 2010, Andrew tried to reassert the handwritten will naming him as beneficiary. He also challenged Denice’s appointment as guardian and conservator, and the award of damages and attorneys fees.

The probate judge ultimately found that Andrew had been disinherited by his exploitation, that he had no basis for seeking Denice’s removal as guardian and conservator, that Bridget’s prior will (which had left nothing to Andrew) was valid, and that the judgment against him was proper. When Andrew appealed, the Court of Appeals agreed on every point.

It is worth noting, as the Court of Appeals does, that much of probate court’s ruling against Andrew is based on his failure to proceed properly in the underlying lawsuit. He answered the complaint with a general denial, but without specific allegations that would support his argument. His response to a motion for entry of judgment against him did not challenge the factual allegations, which were thus assumed to be correct. He filed numerous pleadings and motions, but apparently without good legal advice.

The final resolution of Bridget’s guardianship/conservatorship/probate case, though, was clear. Bridget was a vulnerable adult, impaired by her diminishing mental capacities. Andrew was her caretaker (he claimed that they held themselves out as a married couple, but he acknowledged that they were never actually married), and owed her a duty not to commingle their assets or take advantage of her. He breached that duty by transferring her assets into his own name. He might have also neglected her, though the probate court never had to reach that question.

Arizona law at the time provided for automatic disinheritance of someone who exploits a vulnerable adult (it has since been changed to permit, but not require, the court to order disinheritance). It also provided for damages automatically set at three times the amount actually exploited (it has since been changed to allow the court to enter judgment of up to two times the amount of damages). The Court of Appeals upheld the orders entered by the probate court under the “vulnerable adults” statute. In Re Garner, Deceased, February 25, 2015.

Even though Arizona’s law has been relaxed somewhat, it remains stronger than the similar provisions in many other states. Although it is often hard to recover damages for abuse, neglect or exploitation of vulnerable seniors, sometimes the legal tools actually work fairly well. Similar stories might be told in other states, though we don’t hold ourselves out as experts on other states’ laws or practices. But if you know someone who has been taken advantage of in similar circumstances, we strongly suggest that you get good legal advice to consider whether there might be some recourse to recover lost assets and, much more importantly, protect vulnerable seniors and improve their lives.

Nursing Home Arbitration Agreement May Not Be Enforceable

NOVEMBER 17, 2014 VOLUME 21 NUMBER 42

If you have recently signed a family member (or a friend, or yourself) into a nursing home or other care facility, you probably have been presented with an agreement to submit all disputes to arbitration. Such provisions are very popular among the facilities themselves, though most individuals who sign them may not understand or appreciate what they are agreeing to. A recent Arizona appellate decision calls the scope of those provisions into question.

Martha Anderson (not her real name) was admitted to a Phoenix-area nursing home four different times in 2011, as her condition worsened and improved several times. After each of the first two admissions, her daughter Mary signed documents on Martha’s behalf. The documents included an agreement, on behalf of her mother, to submit any disputes that might arise between Martha and the nursing home to the arbitration process. For the third and fourth admissions, no one asked her to sign the arbitration agreements again.

Martha’s condition worsened, and she died in the nursing home in 2012. Mary initiated a probate proceeding and then sued the nursing facility, alleging both that the facility’s care led to her mother’s death and that the care amounted to abuse or neglect of a vulnerable adult. The nursing home moved to dismiss the lawsuits, pointing out that Mary had agreed to arbitration instead of a court trial.

The judge hearing Mary’s lawsuit agreed, and dismissed her case. That meant that Mary would have to submit to binding arbitration. Instead, she appealed the dismissal.

The Arizona Court of Appeals agreed with Mary, at least in part. The appellate court determined that the arbitration agreement was not enforceable as to either of the primary portions of Mary’s lawsuit. First, the judges noted that Mary signed the agreement on her mother’s behalf, not her own — and the wrongful death claim she had brought against the nursing home belonged not to her mother (or her mother’s estate) but to the surviving family members. If Martha had signed the agreement, she could not force her children to submit their claims to arbitration, and so Mary could not bind them when signing on her mother’s behalf.

In the particular facts of Martha’s nursing home admissions, the appellate judges also declined to apply the arbitration agreement to the remaining abuse/neglect claims. Because no new arbitration agreement was signed for the third and fourth admissions, Mary had not agreed to arbitrate her mother’s claims arising during those stays.

Mary had also argued that the arbitration agreements were unenforceable because they were simply unconscionable. The appellate judges rejected that argument, finding that she had not shown that the method of securing her signature, or the cost of arbitration would be an undue burden on her. Of particular importance in this finding: both of the agreements that Mary signed clearly indicated that they were voluntary, that her signature was optional, and that her mother’s admission and care would not be affected if she did not sign the agreements. Estate of Aspeitia v. Life Care Centers, Inc., October 21, 2014.

Why would someone in Mary’s position voluntarily sign an agreement to submit any future claims to binding arbitration? It is not clear, as there are few benefits accruing to the patient in such a situation. Benefits to the facility are much more obvious: the arbitration process is much less expensive, less likely to result in significant awards, and less prone to the strong reactions that jurors sometimes evidence.

This is not the first time Arizona courts have addressed arbitration agreements in nursing home settings. In 2013 we reported on another case, in which the Arizona Court of Appeals ruled that the arbitration agreement was unconscionable. Why was that agreement overturned, while Martha’s agreement was voided only because it was not signed for her last two admissions? Because in the 2013 case, the evidence was clear that the patient (who was still living and filing the lawsuit himself) would have to come up with over $20,000 just to initiate the arbitration proceeding.

What message does Martha’s case have for others? First, it needs to be clear that it is limited to Arizona — other states have addressed similar agreements to submit to binding arbitration, and they have been approved or rejected based on both similar and different theories. State law really does matter.

Perhaps a better question to consider, though, is what you might do when admitting a loved one to a nursing facility. Should you sign an arbitration agreement? What happens if you do not?

First, the arbitration provisions will probably be in a separate document or separately spelled out in a combined agreement (requiring your signature on that section). The arbitration provisions are likely to have language like Mary confronted, too — telling you that your signature on that section (or that separate form) is optional. Don’t sign that provision and you will not be bound by it. We think you ought to go further, in fact. Cross out the arbitration portion. Write “no” next to it. Make it clear that you didn’t just forget to sign, but that you specifically refuse the offer of binding arbitration.

Should you have a lawyer review your nursing home contract before you sign? Yes. Here’s an important benefit: it buys you time, to consider the significance and effect of your signature. Tell the facility that you’ll get the agreement back to them as quickly as you can get with your lawyer and review it.

What you really want, of course, is not to have a claim against the nursing facility at all. In other words, you want your family member’s care to be excellent, and to have no adverse outcome. To that end, keep close tabs on the care at the facility. Challenge staffing levels, care decisions, diagnoses and accommodations made by the facility. You want the caretakers (and, in fact, the facility itself) to view you as a concerned advocate, and not an angry and dissatisfied irritant — but you want to maintain your level of concern and oversight.

Good luck. It is really difficult to have a family member in the nursing facility. It is more difficult for them; help them as ably as you can.

Reporting Abuse, Neglect or Exploitation of Vulnerable Adults

DECEMBER 23, 2013 VOLUME 20 NUMBER 48

As people live longer and the elderly population increases, so does the likelihood of abuse, neglect and exploitation of vulnerable adults. Lawyers, accountants, doctors, nurses, caretakers, bankers — indeed, any professional — faces a growing probability that at some point they will be confronted with the issue of whether to report suspected abuse, neglect or exploitation. For lawyers, especially, the ethical requirement that client confidences be maintained can complicate the problem.

There were over 1,600 allegations of abuse, neglect or exploitation of vulnerable adults reported in Pima County, Arizona (the Tucson area) last year. Surprisingly, fewer than 1% of these were reported by legal professionals. Arizona law imposes an affirmative duty on attorneys to report suspected exploitation of a vulnerable adult to the authorities. Arizona Revised Statutes § 46-454(b) requires any attorney who is responsible for preparing the tax records of a vulnerable adult, or responsible for any “action concerning the use or preservation of the vulnerable adult’s property and who, in the course of fulfilling that responsibility, discovers a reasonable basis to believe that exploitation of the adult’s property has occurred or that abuse or neglect of the adult has occurred shall immediately report or cause reports to be made …”

Keep in mind that an individual does not have to be “elderly” to be a vulnerable adult. Any adult who is unable to protect himself or herself from abuse, neglect or exploitation by others because of a physical or mental impairment is a vulnerable adult. The definition of vulnerable adult is broad and so are the types of abuse and exploitation that the statute is intended to cover. Financial exploitation of vulnerable adults occurs with alarming frequency and in many cases goes unreported because the victim may not be aware of the ways in which he or she is being exploited.

Reports of suspected abuse can be made to the City Police, County Sheriff or (statewide) Adult Protective Services. The Pima County Public Fiduciary also handles cases of suspected financial exploitation. Even if suspected abuse is later found to be unsubstantiated, there are no penalties for good faith reporting. Any attorney who makes a report in good faith is likely to have some civil and/or criminal immunity from liability. You can make a report anonymously, however, the law requires that the report be made immediately, otherwise you may be found guilty of a class 1 misdemeanor.

So, you may be reading this and thinking: “how can I uphold my duty of confidentiality to my client if I suspect that he or she may be a victim of abuse, neglect or exploitation?” How is it possible to balance this ethical duty when reporting of suspected abuse is mandatory? In Arizona, you will not breach your duty of confidentiality if you reveal only information to the extent you believe is necessary to comply with a law that requires the disclosure of such information.

Arizona’s version of the ethical rules governing lawyers provides specific guidance to attorneys in cases where an attorney believes that his or her client of diminished capacity is at “risk of substantial physical, financial or other harm unless action is taken and cannot adequately act in the client’s own interest.” In these specific cases, an attorney may take “reasonably necessary protective action,” including consulting with individuals or entities who may be able to protect a client with diminished capacity.  In taking any protective action, among other considerations, an attorney may be guided by the client’s best interests or the wishes and values of the client.

Pima County (and Arizona) is home to a growing number of seniors and vulnerable adults. As we consider the ways our practices can build a healthy community, we must remember the duty of advocacy we owe our clients. If you suspect a case of abuse is occurring and feel unsure about your duty to report, then reach out to one of our colleagues who specialize in professional responsibility or call the Arizona State Bar Ethics Hotline.

What about lawyers practicing in other jurisdictions? State laws vary — many states have mandatory reporting requirements but quite a few of them either do not extend to, or specifically exempt, lawyers from coverage. The ethical rules permitting disclosure when the client is at risk, however, have been adopted in substantially similar form in almost every state.

What about other professionals? Arizona’s mandatory reporting law is very clear: doctors and other medical providers are covered as to reporting abuse, neglect and exploitation, and accountants and tax preparers are covered as to reporting exploitation. Other states vary, with some focusing on medical providers and others on social workers and government officials. If you work with seniors and/or adults with diminished capacity, you should check into your state laws regarding mandatory reporting of abuse, neglect and/or exploitation.

Benefits Eligibility Irrelevant in Lawsuit Over Trust Terms

FEBRUARY 6, 2011 VOLUME 18 NUMBER 5
What can a parent do to ensure continuing care for his or her adult child with a disability? That was the dilemma facing Californian Earl Blacksher in the late 1980s. His daughter Ida McQueen lived with him in the family home in Oakland. She was developmentally disabled, and she received Supplemental Security Income (SSI) payments; she had no other resources and Mr. Blacksher’s own assets were largely limited to the home.

Mr. Blacksher signed a will. He directed that Ms. McQueen be allowed to live in the house for the rest of her life, and that the rest of his small estate be placed in trust to help her pay for the care and services that would be required to let her stay at home. He left his two brothers in charge of the estate and the testamentary trust he created.

After the brothers restructured the mortgage on the house, Ms. McQueen could live there on her SSI payments — just barely. When she became ill a decade later she moved temporarily to a nursing facility. With no resources to help pay for in-home care, and with escalating needs, she could not return to the home.

The attorney who had handled the probate in the first place had never been paid, since there was not enough money to take care of her bill. Neither had the brothers been paid for their work in handling the estate. Nor had the real property taxes on the home been kept current. It appeared that there was no choice but to sell the house, pay bills, and distribute any proceeds. The attorney assisted the trustee in listing and selling the house.

After all the bills were caught up there was $90,000 left to distribute. The attorney, apparently reasoning that Ms. McQueen had effectively abandoned her life estate interest in the home by failing to pay taxes and keep payments current, decided that nothing needed to be retained in Mr. Blacksher’s trust, and she arranged distribution of the proceeds to the remaining family members.

Almost immediately a conservatorship was begun to investigate the transaction, and a lawsuit was filed against several family members and the attorney who had arranged the sale and distribution. The lawsuit argued that the net proceeds should have been retained in trust for the benefit of Ms. McQueen. In response, the defendants insisted that it was reasonable to treat Ms. McQueen’s right to use of the house (or proceeds from its sale) as terminated, and that in any event any money she would have received would have simply interrupted her eligibility to receive SSI payments and subsidized care from California’s Medicaid program.

At trial two attorneys testified about the possibility of treating Mr. Blacksher’s trust as a “special needs” trust, which might have allowed Ms. McQueen to have the benefit of the sale proceeds without losing her eligibility for SSI and Medicaid. One expert opined that the option should have been discussed; the other pointed out that Mr. Blacksher’s trust did not qualify as written, and that California law would not have permitted a revision. Ultimately, however, the language of Mr. Blacksher’s testamentary trust was irrelevant — the trial judge precluded testimony about SSI benefits, and the jury found that most of the defendants had participated in taking money from Ms. McQueen. They were ordered to return $99,900 to Ms. McQueen.

One defendant — the attorney — was singled out by the jury for additional penalties. She was the only one the jury found liable for elder abuse, a separate claim under California law (and, incidentally, under the law of Arizona and most, if not all, other states). That did not directly increase the jury’s award against her, but it did have a significant additional effect. California law permits an award of attorneys fees against a party found liable for elder abuse. The attorney was ordered to pay Ms. McQueen’s lawyer’s fees, which totaled another $320,748.25.

The California Court of Appeal considered several arguments but ultimately upheld the judgment, including the effectively quadrupled award against the attorney. Key to the appellate court’s ruling was a finding that it was irrelevant whether Ms. McQueen received SSI or Medicaid benefits, or whether she would have lost those benefits if the terms of her father’s trust had been carried out as written. The judges were also unimpressed by an argument that the attorney acted reasonably in deciding, albeit wrongly, that failure to pay taxes or upkeep on the house effectively ended Ms. McQueen’s interest in the trust. McQueen v. Drumgoole, January 14, 2011.

The litigation involving Mr. Blacksher’s testamentary trust proves what every parent of a child with disabilities already knows: it can be very difficult to come up with a plan that adequately protects your child after your death. Mr. Blacksher’s trust may have been inadequate to the task, but it may be that the basic inadequacy was in the plan itself — there does not seem to have been enough money available to let Ms. McQueen stay in the family home after his death.

What might Mr. Blacksher have done differently? It is hard to be certain on the sparse record in the Court of Appeal, but there are a number of planning questions we might have asked Mr. Blacksher if we had a chance to speak with him before he signed his will, including:

  1. Does the testamentary trust language in your will adequately protect your daughter’s interest in the family home if it has to be sold? It appears that Mr. Blacksher’s will may not have done so — the trust he established may not have been a “special needs” trust.
  2. Do you have a realistic plan about how your daughter’s care can be provided? It appears from the outcome that there were not sufficient assets available to provide in-home care, even if health problems had not intervened to send Ms. McQueen to a care facility.
  3. If a move from the home is inevitable after your death, have you given adequate consideration to alternatives now? Might it be best to look into transitioning your daughter into a suitable placement while you are still able to participate in the selection and oversight of the care home?
  4. How involved — both in terms of time and in financial and other support — will the rest of the family be in caring for your daughter? Most parents recognize the high personal cost of providing full-time care. Did Mr. Blacksher’s family members realize that they would need to provide some of that care after he was unavailable, or did they realize it but lack the resources to do what he had done for years?

For lawyers, the key messages from the McQueen v. Drumgoole case are probably:

  • The “collateral source” rule, which prevents jury consideration of other payments available to the plaintiff in most civil lawsuits, applies in a case like this to prevent discussion of the SSI and Medicaid benefits a plaintiff might be entitled to receive — even if a successful verdict might eliminate those benefits.
  • The attorneys fees generated in complex litigation might all be chargeable against an unsuccessful defendant, even if not all of the claims (and all of the defendants) are found liable for any attorneys fee award.

For family members, though, the takeaway message is simpler:

  • Failure to plan realistically for your child’s care may result in a failed care plan.

Court Cases Demonstrate Two Remedies For Elder Abuse

MAY 17, 2004 VOLUME 11, NUMBER 46

Two recent appellate court cases illustrate different aspects of the law’s response to abuse and exploitation of seniors. Taken together the two cases underscore that protection of vulnerable seniors can be a priority of the legal system.

The first case tested California’s law on elder abuse, which permits the courts to (among other things) disinherit a family member or devisee who exploits a senior. Laura Marie Lowrie had accumulated an estate of approximately $1 million during her 89 years. During the last ten years of her life her son Sheldon Lowrie took over more and more of the management of her finances. By the time of her death in 1999 he had gotten her to transfer two houses to him. He had also persuaded her to modify her revocable living trust so that the bulk of her estate would pass to him.

Ms. Lowrie’s granddaughter Lynelle Goodreau believe that her uncle had taken financial advantage of his mother. She brought an action to set aside changes in the living trust, and to secure return of property that should have belonged to the trust.

Ms. Goodreau alleged that her uncle had abused his mother physically and financially. According to her, he isolated his mother from contact with other family members. He taped her telephone handset so that she could not make or receive calls, he locked her security door from the outside so she could not leave her home, and he put a warning sign on the front door instructing social workers and peddlers not to bother her.

Among the choices available to the judge under California’s elder abuse statute was the possibility of ordering that Sheldon Lowrie should be treated as having died before his mother. He was the remainder beneficiary of her trust, and would receive the bulk of her assets under its terms. If he had died before his mother, however, most of the trust assets would pass to Ms. Goodreau.

After hearing testimony from most of the family members, plus neighbors, friends and acquaintances of Ms. Lowrie, the trial judge decided that Mr. Lowrie had taken advantage of his mother. The judge noted that he had stolen hundreds of thousands of dollars from her and from the family business, and that he had bought seven or eight antique automobiles, had paid off his own personal credit card bills, and had accepted “gifts” of most of her physical property.

Based on that testimony the trial judge decided that Mr. Lowrie should be treated as having predeceased his mother. It ordered that he pay Ms. Goodreau $665,623.60 to replace the money he had taken from his mother, plus $250,000 for his mother’s pain and suffering, plus another $50,000 in punitive damages. The California Court of Appeal upheld the judgment and the finding of disinheritance. Estate of Lowrie, April 30, 2004.

Arizona law is similar to the California provision on elder abuse. One alternative available to the courts in extreme cases of abuse, neglect or exploitation is to work a disinheritance of the offender. Just as in the Lowrie case, that would result in the abuser/exploiter being treated as already deceased, and the elder’s property passing to heirs or devisees other than the offender.

In the second elder abuse case reported in recent weeks, a care home operator in Hawai’i was convicted of manslaughter in the death of a resident of her home. The Hawai’i Court of Appeals upheld the conviction, despite her argument that it had not been shown that she intended any harm.

Chiyeko Tanouye was eighty years old at the time of her death. She had lived in an adult care home operated by Raquel Bermisa for only a few months, but her condition had worsened dramatically and quickly.

Ms. Bermisa took Ms. Tanouye to her doctor’s office on June 30, 1999, for treatment for a urinary tract infection. During that visit the doctor noted that Ms. Tanouye had a decubitus ulcer (a bedsore) which, at about five centimeters in size, required attention. He instructed Ms. Bermisa to wash the ulcer with Betadine cleaning solution and to apply Intrasite gel daily, and to bring her back a week later for a follow-up visit.

When Ms. Bermisa returned with Ms. Tanouye on July 7, the decubitus ulcer had not cleared up. The doctor referred her to a specialist for further treatment.

Ms. Tanouye was seen by the specialist just two days later, but her condition had worsened markedly. He saw two decubitus ulcers rather than one, and both had areas of dead tissue. He cleaned the ulcers, applied sterile gauze moistened with saline solution, and instructed Ms. Bermisa to change the dressing two or three times each day. He scheduled another follow-up visit for a week later, but Ms. Bermisa and Ms. Tanouye did not return.

Instead, Ms. Bermisa arrived at the Pali Momi emergency room a month later with Ms. Tanouye in the front seat of her car. She told nurses at the emergency room that she had been out shopping with Ms. Tanouye and the other residents of her care home, and that something was wrong with Ms. Tanouye.

Something was indeed wrong. Ms. Tanouye’s decubitus ulcers had grown much larger, and they showed no signs of treatment. The smell from the ulcers was overpowering to the nurses, and they noted that one of Ms. Tanouye’s heels was also ulcerated. They tried their best to treat Ms. Tanouye but she died the next day.

Ms. Bermisa was charged with manslaughter for her apparent failure to provide adequate care. At her trial testimony was offered from an adult protective services worker, the nurses who provided care to Ms. Tanouye during her final hospitalization, the doctors who had treated her and directed Ms. Bermisa how to care for her, and the trainer who had given Ms. Bermisa instruction leading to her certification as a Certified Nurse’s Aide (CNA). The jury convicted her, and she appealed.

The Hawai’i Court of Appeals affirmed Ms. Bermisa’s conviction. Although she argued that the prosecutor had not shown that she had any intention to harm Ms. Tanouye, the court found that she had acted recklessly, and that she had a duty to provide adequate care. The court also noted that Ms. Bermisa was properly trained to recognize the problems Ms. Tanouye was suffering, and she should have recognized the importance of maintaining the treatment regimen directed by Ms. Tanouye’s physicians. When she failed to follow through with proper treatment, and apparently failed to appreciate the significance of her resident’s condition, she violated her duties as a caretaker. State v. Bermisa, May 7, 2004.

Lawyer Loses Her Own Case, Faces Bar Disciplinary Action

DECEMBER 15, 2003 VOLUME 11, NUMBER 24

Sherri K. apparently thought her stepfather Clifford H. (the court opinion does not disclose family names) needed protection. She asked the California courts to appoint her as conservator, and she alleged that there was an emergency requiring immediate action. Without giving notice to her stepfather or other family members she scheduled a hearing and secured appointment as temporary conservator of Clifford’s person and estate.

The court’s order specifically directed the other family members to surrender Clifford to Sherri’s custody, but they refused. In response Sherri filed a request that the rest of the family be held in contempt of court for refusing a valid court order. She also filed petitions alleging that Clifford had been subjected to elder abuse, and the court then issued orders restraining the family and directing them to appear to “show cause” why the orders should not be made permanent.

Although unusually nasty and litigious, the tragic story of Clifford H. would not, unfortunately, be all that uncommon—except that Sherri is herself an attorney. The legal proceedings that followed demonstrated that lawyers have a special responsibility to see to it that the courts are not misused.

Sherri’s mother Jean H. hired a lawyer of her own and objected to the conservatorship and to the temporary orders. The court appointed an attorney to represent Clifford, and that attorney also objected. Sherri ultimately withdrew some of her requests, and the court denied the rest. Then the question of attorney’s fees had to be resolved.

Though she had been unsuccessful, Sherri sought over $45,000 in fees and costs for herself and her attorney. Meanwhile, her mother and siblings asked the court to order Sherri to pay their attorneys’ fees of almost $18,000.

The court ordered Sherri to pay her own attorney’s fees, but did allow her $15,000 in fees and costs to be paid from her stepfather’s estate. At the same time, however, the court ordered Sherri to pay $10,000 of her mother’s and siblings’ attorneys’ fees.

Sherri appealed, arguing that she should have been awarded all her own attorney’s fees and not required to pay any of her family’s fees. The California Court of Appeals forcefully disagreed, going so far as to rule that her appeal was frivolous.

In addition to the earlier order Sherri was directed to pay over $10,000 more in fees to her mother to cover the costs of the appeal. Noting that the conservatorship and the appeal were obviously motivated by Sherri’s hatred of her family rather than a desire to achieve a just result, the court also ordered her to report herself to the State Bar of California for disciplinary action. Conservatorship of Clifford H., November 21, 2003.

Employee’s Name Taken Off State Misappropriation List

JUNE 9, 2003 VOLUME 10, NUMBER 49

Financial exploitation of vulnerable seniors is widespread. The problem even arises in controlled settings like adult care homes and nursing homes. That is why the State of Missouri took some extraordinary steps to try to curb financial abuses in institutional settings.

The Missouri Department of Health and Senior Services maintains a list of facility employees who are known to have taken money from residents, and circulates the list among state agencies and institutions. Nursing facilities are prohibited from hiring any individuals on the Department’s list, so placement on the “employee disqualification list” can effectively end the career of a care provider.

Though maintenance of the list is clearly intended to help reduce the epidemic of exploitation of institutionalized seniors, a Missouri court recently decided that the Department’s interpretation was too broad. The challenge arose from the listing of Beverly Ann Wells, the admissions coordinator of social services at The Williamsburg extended care facility in Columbia, Missouri.

In 1999 Williamsburg resident Chester Riggins, then 91 years old, signed a series of small checks made out to Williamsburg employees. One of those checks, for $100, was to Ms. Wells. Though no one knew of the check to Ms. Wells at the time, it came to light a year later when Mr. Riggins applied for Medicaid.

When confronted, Ms. Wells first denied that she had received any money from Mr. Riggins. She soon acknowledged that she had gotten the check, signed it and deposited it in her own bank account, but she insisted that Mr. Riggins had simply been repaying her for numerous small expenditures she had made for him, and for errands she had run on his behalf.

When the check came to light Ms. Wells was fired from her position at The Williamsburg. The State then decided to put her name on the employee disqualification list, not for misappropriating Mr. Riggins’ money but for failing to report the payment, in writing, as required by state law. Ms. Wells appealed the decision to put her name on the disqualification list.

The Missouri Court of Appeals ruled that the list was supposed to include only individuals who had actually misappropriated residents’ money. The Court refused to permit her inclusion for failure to file a written report of the payment. The Department had not found that Ms. Wells actually misappropriated Mr. Riggins’ funds, so inclusion of her name on the employee disqualification list was not justifiable. Wells v. Dunn, May 20, 2003.

Arizona does not maintain a list like Missouri’s employee disqualification list. Arizona law does require the Attorney General to maintain a public list of individuals who have been sued for elder abuse, but that list is not readily available.

New York Lawyer Disbarred For Financially Exploiting Seniors

MAY 12, 2003 VOLUME 10, NUMBER 45

Financial exploitation of vulnerable seniors is hardly a new problem, but both the frequency and the severity of abuse have increased dramatically in recent years. Many seniors (or their concerned friends and family members) turn to the legal system for help and protection. Sometimes protectors become abusers themselves. That was the case with New York attorney Charles Butin.

Mr. Butin was ultimately disbarred by the New York Supreme Court, Appellate Division—but not until he had taken tens of thousands of dollars belonging to at least three women he had been hired to help protect.

Martha Reifforth hired Mr. Butin to initiate guardianship proceedings with regard to her close friend Marie Edelman in 1996. Ms. Edelman had become unable to handle her own affairs, but not before she had signed powers of attorney giving Ms. Reifforth authority to take care of her financial affairs. Mr. Butin told her that she needed to sign a number of blank account withdrawal forms, and then began transferring Ms. Edelman’s money into his own office bank account.

Ultimately Ms. Reifforth fired Mr. Butin and hired a new lawyer to try to recover funds still in his control. Although he had transferred at least $144,300 into his own accounts by the time of Ms. Edelman’s death in July, 2000, Mr. Butin only had $38,036.60 left in his office account—and he had made no distributions for Ms. Edelman’s benefit. He estimated that his fees for work done on her behalf totaled between $25,000 and $75,000, though he had never submitted a bill.

In two other cases Mr. Butin represented guardians of elderly, incapacitated women, and took charge of handling their accounts. In both cases he paid himself substantial fees without getting approval from his clients or the court, and failed to pay the women’s bills on time. In one case his client was held in contempt and sentenced to five days imprisonment, though the judge later set that sentence aside when it became apparent that Mr. Butin’s client was unaware that he was in serious trouble with the courts—because Mr. Butin did not tell him about the contempt proceeding.

Mr. Butin asked for a lesser punishment, pointing out that he had been active in bar association activities, had donated many hours of free legal time, and had emotional and family problems that contributed to his admittedly wrongful behavior. In ordering his disbarment the court noted that he “targeted clients who were likely to be vulnerable to his manipulation, including the elderly or the incapacitated.” In the Matter of Butin, November 18, 2002, as amended March 12, 2003.

Two California Cases Illustrate Types of Elder Abuse, Neglect

SEPTEMBER 30, 2002 VOLUME 10, NUMBER 13

Abuse of the elderly may be physical or financial. In some cases caretakers or family members may simply have failed to provide adequate care and that neglect may have lead to injury (or even death). Most elder care professionals recognize that all three kinds of misconduct are seriously under-reported, making it difficult to accurately determine how common the problems actually are. That difficulty is exacerbated by adult protective organizations’ inclusion of “self-neglect”—the failure of a frail elder to seek adequate care for themselves—in the statistical mix.

Two recent California criminal cases are evocative of the kinds of physical abuse and neglect inflicted on elders. Both arise because the defendants, though acknowledging that they were guilty of criminal acts, sought to reduce the severity of sentences imposed for their crimes.

David Wallace Taggart, who lived in Ventura County, had a problem with cocaine. He had been in trouble several times as a result of his drug addiction and drinking, and he was on probation for a drunk-driving offense when he embarked on a three-day cocaine binge, leading to a delusional state and a violent outburst. He began by tearing up his girlfriend’s house, then jumped into his truck, drove it into the fence of his elderly neighbors the Thompsons, and attacked both the wife and husband without any provocation. He ended up striking Mr. Thompson with a frying pan, knocking him out.

When Mr. Taggart was sentenced to nine years in prison he appealed. His argument: he was delusional at the time of the attacks and that should have mitigated his sentence. The Court of Appeals noted that he had a history of violence and drug abuse, and declined to reduce his sentence. People v. Taggart, September 19, 2002.

Nicholas Hayes Raye lived in Napa County. He had befriended an elderly woman, Helen Johnson, and moved in with her, helping her with small household chores and projects. As Ms. Johnson’s ability to take care of herself deteriorated Mr. Raye became more and more responsible for her care. After Mr. Raye noticed open sores on Ms. Johnson’s back he called 911, and state social services workers became involved.

Despite repeated attempts to get Mr. Raye to turn Ms. Johnson in her bed, feed her adequately and keep her wounds clean, he did not seem to be able to cope with his landlady’s condition. Instead, he chased nurses and social workers out of the house. Ms. Johnson’s condition worsened, and she died at home a few weeks after Mr. Raye’s care began.

Mr. Raye obviously suffered from mental problems of his own, but he was convicted of elder abuse and sentenced to one year in jail and five years of probation. He appealed because, among other things, he objected to the prosecutor introducing evidence that he had also taken financial advantage of Ms. Johnson prior to her physical condition worsening. The Court of Appeals upheld Mr. Raye’s conviction, finding that the evidence tended to show the relationship between Mr. Raye and Ms. Johnson, and that any error was harmless. People v. Raye, September 19, 2002.

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